Solutions Engagement Agreement
Exhibit 10
Solutions Engagement Agreement
Agreement #4902P20043
This Base Agreement (“Base Agreement”) dated as of 3/18/2002 (“Effective Date”), between International Business Machines Corporation (“Buyer”) and Halifax Corporation (“Supplier”), establishes the basis for a multinational procurement relationship under which Supplier will provide Buyer the Deliverables and Services described in SOWs issued under this Base Agreement. Deliverables and Services acquired by Buyer or Customer on or after the Effective Date will be covered by this Base Agreement. This Base Agreement will remain in effect until terminated.
1.0 Definitions:
“Affiliates” means entities that control, are
controlled by, or are under common control with, a party to this
Agreement.
“Agreement” means this Base Agreement and any
relevant Statements of Work (“SOW”), Work
Authorizations (“WA”), and other attachments or
appendices specifically referenced in this Agreement.
“Business Partner Agreement” means an agreement
executed between Buyer and Supplier to promote, market, and
support certain products and services.
“Customer” means Buyer’s customer.
“Deliverables” means items that Supplier
prepares for or provides to Buyer or Customer as described in a
SOW. Deliverables include Equipment, Program Products, Developed
Works, Preexisting Materials and Tools.
“Developed Works” means all work product
(including software and its Externals) developed in the
performance of this Agreement as described in a SOW and does not
include Preexisting Materials, Tools, Program Products, or items
specifically excluded in a SOW.
“Equipment” means a machine, its features,
elements, cables, or accessories, including the documentation
required to install, support, use, and maintain it.
“Externals” means any pictorial, graphic,
audiovisual works, reports or data generated by execution of
code and any programming interfaces, languages or protocols
implemented in the code to enable interaction with other
computer programs or end users. Externals do not include the
code that implements them.
“Inventions” means ideas, designs, concepts,
techniques, inventions, discoveries or improvements, whether or
not patentable, conceived or reduced to practice by Supplier or
Supplier Personnel in performance of this Agreement.
“Joint Inventions” means Inventions made by
Supplier or Supplier Personnel with Buyer Personnel.
“Participation Agreement” or “PA”
means an agreement signed by one or more Affiliates which
incorporates by reference the terms and conditions in this Base
Agreement, any relevant SOW, and other attachments or appendices
specifically reduced in the PA.
“Personnel” means agents, employees or
subcontractors engaged or appointed by Buyer or Supplier.
“Preexisting Materials” means items including
their Externals, contained within a Deliverable, in which the
copyrights are owned by a third party or that Supplier prepared
or had prepared outside the scope of this Agreement. Preexisting
Materials exclude Program Products and Tools, but may include
material that is created by the use of Tools.
“Prices” means the agreed upon payment and
currency for Deliverables and Services, including all applicable
fees, payments and taxes, as specified in the relevant SOW
and/or WA.
“Program Products” means Supplier’s
commercially available software and the documentation required
to install, support, use, and maintain it.
“Services” means work that Supplier performs
for Buyer as described in a SOW.
“Statement of Work” or “SOW”
means any document that:
1. identifies itself as a statement of work;
2. is signed by both parties;
3. incorporates by reference the terms and conditions of
this Base Agreement; and
4. describes the Deliverables and Services, including any
requirements, specifications or schedules.
“Tools” means software that is not commercially
available and its Externals, required for the development,
maintenance or implementation of a software Deliverable other
than a Program Product.
“Work Authorization” or “WA” means
Buyer’s authorization in either electronic or tangible form
for Supplier to conduct transactions under this Agreement in
accordance with the applicable SOW (i.e., a purchase order, xxxx
of lading, or other Buyer designated document). A SOW is a WA
only if designated as such in writing by Buyer.
2.0 Statement of Work
Supplier will provide Deliverables and Services as specified in
the relevant SOW only when specified in a WA. Supplier will
begin work only after receiving a WA from Buyer. Buyer may
request changes to a SOW and Supplier will submit to Buyer the
impact of such changes. Changes accepted by Buyer will be
specified in an amended SOW or change order signed by both
parties.
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Form Title: Solutions Engagement Agreement Form Owner: Global Procurement |
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Form Release: 8/98 Revision: 09/01 |
Solutions Engagement Agreement
Agreement # 4902P20043
3.0 Pricing
Supplier will provide Deliverables and Services to Buyer for the Prices. Except for pre-approved expenses specified in the relevant SOW, the Prices for Deliverables and Services specified in a WA and accepted by Buyer will be the only amount due to Supplier from Buyer. Suppler is not entitled to payment under this Agreement for activities also covered by a Business Partner Agreement with Buyer.
4.0 Payments and Acceptance
4.1 Payments and Acceptance
Terms
Terms for payment will be specified in the relevant SOW and/or WA. Payment of invoices will not be deemed acceptance of Deliverables or Services, but rather such Deliverables or Services will be subject to inspection, test, acceptance or rejection in accordance with the acceptance or completion criteria as specified in the relevant SOW and/or WA. Buyer or Customer may, at its option, either reject Deliverables or Services that do not comply with the acceptance or completion criteria for a refund, or require Supplier, upon Buyer’s written instruction, to repair or replace such Deliverables or re-perform such Service, without charge and in a timely manner.
4.2 Outsourcing License
In the event Buyer provides outsourcing services to licensees of a Program Product, Buyer will not owe Supplier a fee for access to or assignment of a license to such Program Product or for transfer of the applicable Program Product to a Buyer computer system which is of like configuration as the computer system for which the Program Product was licensed. The foregoing is subject to Buyer providing Supplier notice of such Program Product to be managed by Buyer and provided the Program Product will only be used on behalf of the licensee. Upon expiration or termination of the agreement to provide outsourcing services to the licensee, Buyers right to use that copy of the Program Product will end.
For those Program Products acquired directly by Buyer from Supplier, Buyer shall be free to continue to use such Program Products in support of its business needs, including in support of the provision of Services to Buyer’s Customers, at no additional fee, subject to the continued compliance with the terms of the Agreement. Buyer shall have the right to assign the license it has acquired from Supplier hereunder to its Customer at no additional cost, provided that Buyer gives Supplier thirty (30) days prior written notice of its intent to assign such rights, and provided further that Buyer’s Customer signs Supplier’s license, and/or such other contractual document as may be reasonably required for such Program Product support.
5.0 Electronic Commerce
To the extent permitted by local law, the parties will conduct transactions using an electronic commerce approach under which the parties will electronically transmit and receive legally binding purchase and sale obligations (“Documents”), including electronic credit entries transmitted by Buyer to the Supplier account specified in the relevant SOW and/or WA. The parties will enter into a separate agreement governing the transmission of such electronic transactions and associated responsibilities of the parties.
6.0 Warranties
6.1 Ongoing
Warranties
Supplier makes the following ongoing representation and warranties:
1. it has the right to enter into this Agreement and its
performance of this Agreement will comply, at its own expense,
with the terms of any contract, obligations, including any
between Supplier and its end-users; or any law, regulation or
ordinance to which it is or becomes subject;
2. it is incorporated or organized as a partnership;
3. no claim, lien, or action exists or is threatened
against Supplier that would interfere with Buyer’s rights
under this Agreement;
4. Deliverables and Services do not infringe any privacy,
publicity, reputation or intellectual property right of a third
party;
5. all authors have agreed not to assert their moral rights
(personal rights associated with authorship of a work under
applicable law) in the Deliverables, to the extent permitted by
law;
6. Deliverables are free from
defects in design (except for written designs provided by Buyer
unless such designs are based entirely on Supplier’s
specifications), material and workmanship and Deliverables and
Services will conform to the warranties, specifications and
requirements in this Agreements for one year from the date of
acceptance, except for a conflict between the warranties in this
Agreement and Supplier’s warranty for Program Products, and
in that event Supplier’s license warranties shall apply;
7. it will not engage in electronic self-help;
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Form Title: Solutions Engagement Agreement
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2 of 9 | Form Release: 8/98 | ||
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Form Owner: Global Procurement
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Revision: 09/01 |
Solutions Engagement Agreement
Agreement # 4902P20043
8. Deliverables are safe for use consistent with the warranties, specifications and requirements in this Agreement;
9 Deliverables do not contain harmful code;
10. Services will be performed using reasonable care and
skill and in accordance with the relevant SOW and/or WA;
11. Deliverables and Services which interact in any
capacity with monetary data are euro ready such that when used
in accordance with their associated documentation they are
capable of correctly processing monetary data in the euro
denomination and respecting the euro currency formatting
conventions (including the euro sign) provided that products and
systems not provided by Supplier are capable of interacting with
Supplier’s euro ready Deliverables and Services;
12. none of the Deliverables contain nor are any of the
Deliverables manufactured using ozone depleting substances known
as halons, chlorofluorocarbons, hydrochlorofluorocarbons, methyl
chloroform and carbon tetrachloride as defined by the Montreal
Protocol;
13. Deliverables are new and do not contain used or
reconditioned parts;
14. it is knowledgeable with, and is and will remain in
full compliance with all applicable export and import laws,
regulations, orders, and policies (including, but not limited
to, securing all necessary clearance requirements, export and
import licenses and exemptions from, and making all proper
filings with appropriate governmental bodies and/or disclosures
relating to the release or transfer of technology and software
to non U.S. nationals);
15. it will not export, directly or indirectly, any
technology, software or commodities provided by Buyer or their
direct product to any of the countries or to nationals of those
countries, wherever located, listed in U.S. Export
Administration Regulations’ Country Groups D:1 and E:2, as
modified from time to time, unless authorized by appropriate
government license or regulations;
16. it will not use, disclose, or transfer across borders
any information that is processed for Buyer that may identify an
individual (Personal Data), except to the extent necessary to
perform under this Agreement, and
17. it will comply with all applicable data privacy laws
and regulations, will implement and maintain appropriate
technical and other protections for the Personal Data, and will
cooperate fully with Buyer’s requests for access to,
correction of, and destruction of Personal Data in
Supplier’s possession.
6.2 Standard Warranties
Buyer may pass Supplier’s standard warranty for Equipment
or Program Products through to the Customer. The Customer may
deal directly with Supplier under such warranty and in the event
Supplier’s standard warranty is more favorable than the
warranties in this Agreement, Supplier’s standard warranty
will apply. If Supplier is not the original manufacturer,
Supplier will pass through to Buyer or Customer all warranties
provided by the original manufacturer. In the event of a
conflict between the Supplier, standard warranties, original
manufacturer’s warranties and the warranties in this
Agreement, the warranties more favorable to Buyer or Customer
apply.
THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Warranty Redemption
Subject to Section 9.0 Supplier Liability for Third Party
Claims, if Deliverables or Services do not comply with the
warranties in this Agreement, Supplier will repair or replace
Deliverables or re-perform Services, without charge and in a
timely manner. If Supplier fails to do so, Buyer or Customer may repair
or replace Deliverables or re-perform Services and Supplier will
reimburse Buyer for actual and reasonable expenses. Any
reimbursement for Program Products pursuant to the foregoing
sentence shall be limited to two times that amount of license
fees and maintenance services specified in the SOW.
7.0 Delivery
Deliverables or Services will be delivered as specified in the
relevant SOW and/or WA. Buyer may cancel or reschedule the
delivery date or change the delivery point as specified in the
relevant SOW and/or WA. Risk of loss and title to any tangible property will pass to Buyer or
Buyer’s Customer at the delivery point. If Supplier cannot
comply with a delivery commitment, Supplier will promptly notify
Buyer of a revised delivery date and Buyer may:
1. cancel without charge Deliverables or Services not yet
delivered; and
2. exercise all other remedies provided at law, in equity
and in this Agreement.
8.0 Intellectual Property
8.1 Work Made for Hire
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Form Title: Solutions Engagement Agreement
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3 of 9 | Form Release: 8/98 | ||
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Form Owner: Global Procurement
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Revision: 09/01 |
Agreement # 4902P20043
All Developed Works belong exclusively to Buyer or Customer and are works
made for hire. If any Developed Works are not considered works made
for hire owned by operation of law, Supplier assigns the ownership of
copyrights in such works to Buyer or Customer.
| 8.2 | Preexisting Materials |
Supplier will not include any Preexisting Materials in any
Deliverable unless they are listed in the relevant SOW. Supplier
grants Buyer a nonexclusive, worldwide, perpetual, irrevocable,
paid-up, license to prepare and have prepared derivative works of
Preexisting Materials and to use, have used, execute, reproduce,
transmit, display, perform, transfer, distribute, and sublicense
Preexisting Materials or their derivative works, and to grant others
the rights granted to this Subsection.
| 8.3 | Tools |
Supplier will not include Tools in Deliverables unless they are
listed in the relevant SOW. Supplier grants Buyer a nonexclusive,
worldwide, perpetual, irrevocable, paid-up, license to prepare and
have prepared derivative works of Tools, and to use, have used,
execute, reproduce, transmit, display and perform Tools or their
derivative works. The rights and licenses granted by Supplier to
Buyer under this subsection include the right of Buyer to authorize
others to exercise any of the rights granted to Buyer in this
Subsection.
| 8.4 | Invention Rights |
Supplier owns Inventions. Supplier grants to Buyer and Customer an
irrevocable, nonexclusive, worldwide, perpetual, paid-up license
under Inventions (including any patent applications filed on or
patents issued claiming Inventions). The license scope is to make,
have made, use, have used, sell license or transfer items and to
practice and have practiced methods.
| 8.5 | Joint Invention Rights |
The parties will jointly own all Joint Inventions and resulting
patents. Either party may license others under Joint Inventions
(including any patent applications filed on or patents issued
claiming Joint Inventions) without accounting to or consent from the
other.
| 8.6 | Perfection of Copyrights |
Upon request, Supplier will provide to Buyer a “Certificate of
Originality” or equivalent documentation to verify authorship of
Deliverables. Supplier will confirm assignment of copyright for
Developed Works using the “Confirmation of Assignment of
Copyright” form and will assist Buyer in perfecting such
copyrights.
| 8.7 | Perfection of Invention Rights |
Supplier will identify all countries in which it will seek patent
protection for each Invention. Supplier authorizes Buyer to act as
its agent in obtaining patent protection for the Inventions in
countries where Supplier does not seek patent protection. Supplier
will, at Buyer’s expense, assist in the filing of patent
applications on Inventions and have required documents signed.
| 8.8 | Trademarks |
This Agreement does not grant either party the right to use the other
party’s or their Affiliates’ trademarks, trade names or
service marks.
| 8.9 | Patents |
Supplier grants to Buyer a nonexclusive, worldwide, perpetual,
irrevocable, and paid-up license under any patents and patent
applications licensable by Supplier to make, have made, use, have
used, import, export, sell and otherwise transfer the Deliverables
and use the Services to the extent authorization in this Agreement.
| 8.10 | Program Products |
Customer will receive a license agreement from Buyer or Supplier for
Program Products, to which Buyer is not a party nor liable for
violations. If a Program Product is available under an existing Buyer
agreement, the terms of that agreement will control distribution of
that Program Product. Buyer may install and test Program Products for
Customer without charge. For recurring charge licenses, Buyer will
notify Supplier when to begin invoicing Customer, if applicable.
| 9.0 | Supplier Liability for Third Party Claims |
| Form Title: Solutions Engagement Agreement | 4 of 9 | Form Release: 8/98 |
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Agreement # 4902P20043
| 9.1 | General Indemnification |
Supplier will defend, hold harmless and indemnify, including
legal fees, Buyer and Buyer Personnel against third party claims
that arise or are alleged to have arisen as a result of
negligent or intentional acts or omissions of Supplier or
Supplier Personnel or breach by Supplier of any term of this
Agreement.
| 9.2 | Intellectual Property Indemnification |
Supplier will defend, or at Buyer’s options cooperate in
the defense of, hold harmless and indemnify, including legal
fees, Buyer, Buyer Personnel and Customer from third party
claims that Supplier’s Deliverables or Services infringe
the intellectual property rights of a third party. If such a
claim is or is likely to be made, Supplier will, at its own
expense, exercise the first of the following remedies that is
practicable:
1. obtain for Buyer and Customer the right to continue to
use, sell and license the Deliverables and Services consistent
with this Agreement;
2. modify Deliverables and Services so they are
non-infringing and in compliance with this Agreement;
3. replace the Deliverables and Services, or other affected
Deliverables or Services, with non-infringing ones that comply
with this Agreement; or
4. at Buyer’s request, accept the cancellation of
infringing Services and the return of infringing Deliverables
and refund any amount paid.
Buyer will give Supplier prompt notice of third party claims
against Buyer, and cooperate in the investigation, settlement
and defense of such claims.
| 9.3 | Exceptions to Indemnification |
Supplier will have no obligation to indemnify Buyer, Buyer
Personnel or Customer for claims that Supplier’s
Deliverables or Services infringe the intellectual property
rights of a third party to the extent such claims arise as a
result of:
1. Buyer’s or Customer’s combination of
Deliverables or Services with other products or services not
reasonably foreseeable by Supplier and such infringement or
claim would have been avoided in the absence of such combination;
2. Supplier’s implementation of a Buyer originated
design and such infringement or claim would have been avoided in
the absence of such implementation; or
3. Buyer’s or Customer’s modification of the
Deliverables and such infringement or claim would have been
avoided in the absence of such modification.
| 10.0 | Limitation of Liability between Supplier and Buyer |
In no event will either party be liable to the other for any
lost revenues, lost profits, incidental, indirect,
consequential, special or punitive damages. This mutual
Limitation of Liability does not limit the obligations and
liability of Supplier provided in Section 9.0 Supplier
Liability for Third Party Claims. In no event will either party
be liable for the respective actions or omissions of its
Affiliates under this Agreement.
| 11.0 | Supplier and Supplier Personnel |
Supplier is an independent contractor and this Agreement does
not create an agency, partnership, or joint venture relationship
between Buyer and Supplier or Buyer and Supplier Personnel.
Buyer assumes no liability or responsibility for Supplier
Personnel. Supplier will:
1. ensure it and Supplier Personnel are in compliance with
all laws, regulations, ordinances, and licensing requirements;
2. be responsible for the supervision, control,
compensation, withholdings, health and safety of Supplier
Personnel;
3. inform Buyer if a former employee of Buyer will be
assigned work under this Agreement, such assignment subject to
Buyer approval; and
4. ensure Supplier Personnel performing Services on
Buyer’s or Customer’s premises comply with the On
Premises Guidelines in Section 12.0 and upon request,
provide Buyer, for export evaluation purposes, the country of citizenship and permanent residence and immigration
status of those persons. Buyer retains the right to refuse to
accept persons made available by Supplier for export reasons.
| 12.0 | On Premises Guidelines |
Supplier will ensure that Supplier Personnel assigned to work on
Buyer’s or Buyer’s Customer’s premises will
comply with this Section.
| 12.1 | Access to Premises |
Supplier will ensure that Supplier Personnel assigned to work on
Buyer’s or Buyer’s Customer’s premises will:
| Form Title: Solutions Engagement Agreement | 5 of 9 | Form Release: 8/98 |
| Form Owner: Global Procurement | Revision: 09/01 |
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Agreement # 4902P20043
1. to the extent permitted by local law, participate in a preemployment criminal background check covering the counties in which the person was employed or resided for the past seven years (or longer as required by State legislation), and inform Buyer of any negative findings;
2. maintain a current and complete list of the
persons’ names and social security numbers;
3. obtain for each person a valid identification badge from
Buyer and ensure that it is displayed to gain access to and
while on Buyer’s premises (it is Buyer’s policy to
deactivate any such badge if not used for one month);
4. maintain a signed acknowledgment that each person will
comply with Buyer’s Safety & Security Guidelines;
5. ensure that each person with regular access to
Buyer’s and Buyer’s Customer’s premises complies
with all parking restrictions and with vehicle registration
requirements if any;
6. inform Buyer if a former employee of Buyer will be
assigned work under this Agreement, such assignment subject to
Buyer approval;
7. at Buyer’s request, remove a person from
Buyer’s or Buyer’s Customer’s premises and not
reassign such person to work on Buyer’s or Buyer’s
Customer’s premises (Buyer is not required to provide a
reason for such request); and
8. notify Buyer immediately upon completion or termination
of any assignment and return Buyer’s identification badge.
Upon Buyer’s request, Supplier will provide documentation
to verify compliance with this Subsection.
12.2 General Business Activity Restrictions
Supplier will ensure that Supplier Personnel assigned to work on
Buyer’s or Buyer’s Customer’s premises:
1. will not conduct any non-Buyer related business
activities (such as interviews, hirings, dismissals or personal
solicitations) on Buyer’s or Buyer’s Customer’s
premises;
2. will not conduct Supplier’s Personnel training on
Buyer’s or Buyer’s Customer’s premises, except
for on-the-job training;
3. will not attempt to participate in Buyer or Customer
benefit plans or activities;
4. will not send or receive non-Buyer related mail through
Buyer’s or Customer’s mail systems; and
5. will not sell, advertise or market any products or
distribute printed, written or graphic materials on Buyer’s
or Buyer’s Customer’s premises without Buyer’s
written permission.
12.3 Buyer’s Safety and Security Guidelines
Supplier will ensure that Supplier Personnel assigned to work on
Buyer’s or Buyer’s Customer’s premises:
1. do not bring weapons of any kind onto Buyers or
Buyer’s Customer’s premises;
2. do not manufacture, sell, distribute, possess, use or be
under the influence of controlled substances (for nonmedical
reasons) or alcoholic beverages while on Buyer’s or
Buyer’s Customer’s premises;
3. do not have in their possession hazardous materials of
any kind on Buyer’s or Buyer’s Customer’s
premises without Buyer’s authorization;
4. acknowledge that all persons, property, and vehicles
entering or leaving Buyer’s or Buyer’s Customer’s
premises are subject to search; and
5. remain in authorized areas only (limited to the work
locations, cafeterias, rest rooms and, in the event of a medical
emergency, Buyer’s or Buyer’s Customer’s medical
facilities). Supplier will promptly notify Buyer of any accident
or security incidents involving loss of or misuse or damage to
Buyer’s intellectual or physical assets; physical
altercations; assaults; or harassment and provide Buyer with a
copy of any accident or incident report involving the above.
Supplier must coordinate with Buyer or Customer access to
Buyer’s or Buyer’s Customer’s premises during
non-regular working hours.
12.4 Asset Control
In the event Supplier Personnel has access to information,
information assets, supplies or other property, including
property owned by third parties but provided to Supplier
Personnel by Buyer (“Buyer Assets”), Supplier
Personnel:
1. will not remove Buyer Assets from Buyer’s or
Buyer’s Customer’s premises without Buyer’s
authorization;
2. will use Buyer Assets only for purposes of this
Agreement and reimburse Buyer for any unauthorized use;
3. will only connect with, interact with or use programs,
tools or routines that Buyer agrees are needed to provide
Services;
4. will not share or disclose user identifiers, passwords,
cipher keys or computer dial port telephone numbers; and
5. in the event the Buyer Assets are confidential, will not
copy, disclose or leave such assets unsecured or unattended.
Buyer may periodically audit Supplier’s data residing on
Buyer Assets.
12.5 Supervision of Supplier’s Personnel
Suppliers will provide continual supervision of its Personnel
provided under this Agreement, at no additional cost to Buyer.
Supplier’s supervisor shall have full supervisory authority
over all day-to-day employment relationship decisions relating
to Supplier’s Personnel, including those decisions relating
to wages, hours, terms and conditions of employment, hiring,
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Form Title: Solutions Engagement Agreement Form Owner: Global Procurement |
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Form Release: 8/98 Revision: 09/01 |
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Agreement # 4902P20043
discipline, performance evaluations, termination, counseling and scheduling. Supplier’s supervisors responsible for each work location will be responsible to know that work location’s planned holiday (and other closing) schedules and the impacts all such schedules have on Supplier’s Personnel. Supplier will conduct orientation sessions with its Personnel before placement on an assignment with Buyer, during which orientation such Personnel will be told who their supervisor is and how that supervisor can be contacted. Supplier will, from time to time, ensure that all of its Personnel working under this Agreement continue to be aware of this information.
13.0 Insurance
Supplier will maintain at its expense:
1. commercial general or public liability insurance with a
minimum limit per occurrence or accident of 1,000,000 USD (or
local currency equivalent);
2. workers’ compensation or employer’s liability
insurance as required by local law, such policies waiving any
subrogation rights against Buyer; and
3. automobile liability insurance as required by local
statute but not less than 1,000,000 USD (or local currency
equivalent) if a vehicle will be used in the performance of this
Agreement.
Insurance required under clauses (1) and (3) will name Buyer as an additional insured with respect to Buyer’s insurable interest, will be primary or non-contributory regarding insured damages or expenses, and will be purchased from insurers with an AM Best Rating of B+ or better and a financial class rating of 11 or better.
14.0 Term and Termination
14.1 Termination of this Base
Agreement
Either party may terminate this Base Agreement, without any cancellation charge, for a material breach of this Agreement by the other party or if the other party becomes insolvent or files or has filed against it a petition in bankruptcy (“Cause”), to the extent permitted by law. Such termination will be effective at the end of a thirty (30) day written notice period if the Cause remains uncured. Either party may terminate this Base Agreement without Cause when there are no outstanding SOWs or WAs.
14.2 Termination of a SOW or WA
Buyer may, upon written notice to Supplier, terminate a SOW or WA:
1. with Cause effective immediately; or
2. without Cause.
Upon termination, in accordance with Buyer’s written
direction, Supplier will immediately:
1. cease work;
2. prepare and submit to Buyer an itemization of all
completed and partially completed Deliverables and Services;
3. deliver to Buyer Deliverables satisfactorily completed
up to the date of termination at the agreed upon Prices in the
relevant SOW and/or WA; and
4. deliver upon request any work in process.
In the event Buyer terminates without Cause, Buyer will
compensate Supplier for the actual and reasonable expenses
incurred by Supplier for work in process up to and including the
date of termination provided Supplier uses reasonable efforts to
mitigate Buyer’s liability under this Subsection by, among
other actions, accepting the return of, returning to its
suppliers, selling to others, or otherwise using the canceled
Deliverables (including raw materials or work in process) and
provided such expenses do not exceed the Prices.
15.0 General
15.1 Amendments
This Agreement may only be amended by a writing specifically
referencing this Agreement which has been signed by authorized
representatives of the parties.
15.2 Assignment
Neither party will assign their rights or delegate or
subcontract their duties under this Agreement to third parties
or Affiliates without the prior written consent of the other
party, such consent not to be withheld unreasonably, except that
either party may assign this Agreement in conjunction with the
sale of a substantial part of its business utilizing this
Agreement. Any unauthorized assignment of this Agreement is void.
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Form Title: Solutions Engagement Agreement
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7 of 9 | Form Release: 8/98 | ||
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Form Owner: Global Procurement
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Revision: 09/01 |
Solutions Engagement Agreement
Agreement # 4902P20043
15.2 Choice of Law and Forum; Waiver of Jury Trial Limitation of Action
This Agreement and the performance of transactions under this
Agreement will be governed by the laws of the country
where the Buyer entering into the relevant agreement or PA is
located, except that the laws of the State of New York
applicable to contracts executed in and performed entirely
within that State will apply if any part of the transaction is
performed within the United States. The United Nations
Convention on Contracts for the International Sale of Goods does
not apply. The parties expressly waive any right to a jury trial
regarding disputes related to this Agreement. Unless otherwise
provided by local law without the possibility of contractual
waiver or limitation, any legal or other action related to this
Agreement must be commenced no later than two (2) years
from the date on which the cause of action arose.
15.4 Communications
All communications between the parties regarding this Agreement
will be conducted through the parties’ representatives as
specified in the relevant SOW.
15.5 Counterparts
This Agreement may be signed in one or more counterparts, each
of which will be deemed to be an original and all of which when
taken together will constitute the same agreement. Any copy of
this Agreement made by reliable means (for example, photocopy or
facsimile) is considered an original.
15.6 Exchange of Information
All information exchanged is non confidential. If either party
requires the exchange of confidential information, it will be
made under a separate signed confidentiality agreement between
the parties. The parties will not publicize the terms of this
Agreement, or the relationship, in any advertising, marketing or
promotional materials without prior written consent of the other
party except as may be required by law, provided the party
publicizing obtains any confidentiality treatment available.
Supplier will use information regarding this Agreement only in
the performance of this Agreement. For any business personal
information relating to Supplier Personnel that Supplier
provides to Buyer, Supplier has obtained the agreement of the
Supplier Personnel to release the information to Buyer and to
allow Buyer to use such information in connection with this
Agreement.
15.7 Freedom of Action
This Agreement is nonexclusive and either party may design,
develop, manufacture, acquire or market competitive products or
services. Buyer will independently establish prices for resale
of Deliverables or Services and is not obligated to announce or
market any Deliverables or Services and does not guarantee the
success of its marketing efforts, if any.
15.8 Force Majeure
Neither party will be in default or liable for any delay or
failure to comply with this Agreement due to any act beyond the
control of the affected party, excluding labor disputes,
provided such party immediately notifies the other.
15.9 Obligations of Affiliates
Affiliates will acknowledge acceptance of the terms of this
Agreement through the signing of a PA before conducting any
transaction under this Agreement.
15.10 Prior Communications and Order of Precedence
This Agreement replaces any prior oral or written agreements or
other communication between the parties with respect to the
subject matter of this Agreement, excluding any confidential
disclosure agreements. In the event of any conflict in these
documents, the order of precedence will be:
| 1. | the quantity, payment and delivery terms of the relevant WA; |
| 2. | the relevant SOW; |
| 3. | this Base Agreement; and |
| 4. | the remaining terms of the relevant WA. |
15.11 Record Keeping and Audit Rights
Supplier will maintain (and provide to Buyer upon request)
relevant business and accounting records to support invoices
under this Agreement and proof of required permits and
professional licenses, for a period of time as required by local
law, but not for less than three (3) years following
completion or termination of the relevant SOW and/or WA. All
accounting records will be maintained in accordance with
generally accepted accounting principles.
|
Form Title: Solutions Engagement Agreement
|
8 of 9 | Form Release: 8/98 | ||
|
Form Owner: Global Procurement
|
Revision: 09/01 |
Solutions Engagement Agreement
Agreement # 4902P20043
| 15.12 | Severability |
If any term in this Agreement is found by competent judicial
authority to be unenforceable in any respect, the validity of the
remainder of this Agreement will be unaffected, provided that such
unenforceability does not materially affect the parties’ rights
under this Agreement.
| 15.13 | Survival |
The provisions set forth in the following Sections and Subsections of
this Base Agreement will survive after termination or expiration of
this Agreement and will remain in effect until fulfilled:
“Ongoing Warranties”, “Intellectual Property”,
“Supplier Liability for Third Party Claims”,
“Limitation of Liability between Supplier and Buyer”,
“Record Keeping and Audit Rights”, “Choice of Law and
Forum; Waiver of Jury Trail; Limitation of Action”,
“Exchange of Information”, and “Prior Communications
and Order of Precedence.”
| 15.14 | Waiver |
An effective waiver under this Agreement must be in writing signed
by the party waiving its right. A waiver by either party of any
instance of the other party’s noncompliance with any obligation
or responsibility under this Agreement will not be deemed a waiver of
subsequent instances.
| 16.0 |
| ACCEPTED AND AGREED TO: | ACCEPTED AND AGREED TO: | |
| International Business Machines Corporation | Halifax Corporation | |
| By: |
By: /s/ Xxxxx X.
Xxxxxxxx
3/22/02
|
|
| Buyer Signature Date | Supplier Signature Date | |
| Xxx Xxxx |
Xxxxx X. Xxxxxxxx
|
|
| Printed Name | Printed Name | |
| Procurement Professional –
General Procurement |
Vice President Contracts
|
|
| Title & Organization | Title & Organization | |
| |
|
|
| Buyer Address: 0000 Xxxxxxxxx Xxxxxxx |
Suppler Address: 0000 Xxxxxxxx Xxx. |
|
| Xxxxxxx, XX 00000 XXX |
Xxxxxxxxxx XX 00000 XXX |
| Form Title: Solutions Engagement Agreement | 9 of 9 | Form Release: 8/98 |
| Form Owner: Global Procurement | Revision: 09/01 |
Solutions Engagement Agreement
Agreement # 4902P20043
Audit Rights”, “Choice of Law and Forum: Waiver of
Jury Trial; Limitation of Action”, “Exchange of
Information”, and “Prior Communications and Order of
Precedence.”
15.14 Waiver
An effective waiver under this Agreement must be in writing,
signed by the party waiving its right. A waiver by either party
of any instance of the other party’s noncompliance with any
obligation or responsibility under this Agreement will not be
deemed a waiver of subsequent instances.
16.0
|
ACCEPTED AND AGREED TO:
|
ACCEPTED AND AGREED TO: | |
|
International Business Machines Corporation
|
Halifax Corporation | |
|
By: /s/ Xxxxxxxx Xxxxxx 3/27/02
|
By: /s/ Xxx Xxx 3/22/02 | |
|
Buyer
Signature Date
|
Supplier Signature Date | |
|
Xxxxxxxx Xxxxxx
|
Xxx Xxx | |
|
Printed Name
|
Printed Name | |
|
Procurement Professional — General
Procurement
|
VP-OPERATIONS | |
|
Title & Organization
|
Title & Organization | |
|
Buyer Address
0000 Xxxxxxxxx Xxxxxxx |
Supplier Address: 0000 Xxxxxxxx Xxx. |
|
|
Xxxxxxx, XX 00000
|
Xxxxxxxxxx XX 00000 | |
|
XXX
|
XXX | |
|
Form Title: Solutions Engagement Agreement
|
9 of 9 | Form Release:8/98 | ||
|
Form Owner: Global Procurement
|
Revision: 09/01 |
